On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-399-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2009
Before Judges Fisher and Espinosa.
S.X.H. appeals from a judgment entered on June 6, 2008, which committed him to the Special Treatment Unit pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.35. We affirm.
A criminal defendant convicted of a predicate offense*fn1 to the SVPA may be subject to involuntary civil commitment when suffering from "a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26. To warrant commitment, the State must prove, by clear and convincing evidence, that "the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 132 (2002); In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004).
Prior to conducting a hearing, the judge considered S.X.H.'s motions relating to his various constitutional and procedural contentions. The trial judge ruled against S.X.H. on all these points and, after conducting a plenary hearing, determined that the State had met its burden of proving, by clear and convincing evidence, that S.X.H. should be committed pursuant to the SVPA.
Following the entry of judgment, S.X.H. appealed, raising the following two arguments:
I. THE FAILURE TO PROVIDE TREATMENT TO S.X.H. WHEN HE WAS FIRST CONVICTED DENIED HIM THE EQUAL PROTECTION OF LAW AND WAS FUNDAMENTALLY UNFAIR UNDER ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION.
II. S.X.H. INCORPORATES BY REFERENCE THAT HE WAS ENTITLED TO A TRIAL BY JURY AND THAT HIS FUNDAMENTAL RIGHT TO TRAVEL WAS ABRIDGED, PRESERVING THEM FOR FEDERAL HABEAS CORPUS REVIEW PURSUANT TO STATE v. WEBSTER, 187 N.J. 254 (2006).
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments.
In the first point, S.X.H. contends he was denied the equal protection of the law because of what he refers to as a two-tier classification of sex offenders, i.e., offenders whose conduct warrants immediate treatment pursuant to the Sex Offender Act (SOA), N.J.S.A. 2C:47-1 to -10, and offenders required to serve prison terms and are not treated until civilly committed pursuant to the SVPA.*fn2
The federal equal protection clause "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed. 2d 313, 320 (1985). S.X.H. has not argued a violation of the federal equal protection clause, apparently recognizing that the majority position in Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed. 2d 501 (1997), although not ...